1 Monday, 27 January 2014
2 [Open session]
3 [Appeals Judgement]
4 [The Appellant entered court]
5 --- Upon commencing at 3.30 p.m.
6 JUDGE AGIUS: Good afternoon, everybody.
7 Madam Registrar, could you call the case, please.
8 THE REGISTRAR: Good afternoon, Your Honours.
9 This is case IT-05-87/1-A, The Prosecutor versus Vlastimir
11 JUDGE AGIUS: I thank you.
12 Mr. Djordjevic, I address myself to you. I want to make sure
13 before we proceed that you can follow the proceedings in a language that
14 you understand.
15 THE APPELLANT: [No interpretation].
16 JUDGE AGIUS: I see that -- I see that -- was your microphone on?
17 Because your rely didn't register.
18 THE APPELLANT: [Interpretation] Excuse me, the microphone was not
19 on. I can follow everything in my language.
20 JUDGE AGIUS: I thank you.
21 I would like now to ask the parties to identify themselves,
22 starting with counsel for the Prosecution.
23 MS. KRAVETZ: Good afternoon, Your Honours. My name is
24 Daniela Kravetz, together with my colleagues Kyle Wood, Priya Gopalan,
25 and our Case Manager, Colin Nawrot for the Prosecution. Thank you.
1 JUDGE AGIUS: Thank you. I turn myself now to counsel for
2 Appellant Djordjevic.
3 MR. DJORDJEVIC: Good afternoon, I'm Dragoljub Djordjevic; I'm
4 lead counsel. Together with me today is co-counsel Veljko Djurdjic and
5 legal assistants, Ms. Marie O'Leary, Mr. Aleksandar Popovic, and
6 Mr. Russell Hopkins.
7 JUDGE AGIUS: I thank you very much.
8 Pursuant to the Scheduling Order issued on 15th November 2013,
9 the Appeals Chamber today delivers its judgement in the case of The
10 Prosecutor versus Vlastimir Djordjevic.
11 I shall be reading now a summary of the central findings of the
12 Appeals Chamber. The summary does not constitute the official and
13 authoritative judgement of the Appeals Chamber. The official judgement
14 is rendered in writing and will be distributed to the parties at the
15 close of this hearing.
16 This case relates to events which took place in Kosovo between
17 the 1st of January and 20th of June of the year 1999. Throughout that
18 time, Mr. Djordjevic was the assistant minister to the Serbian minister
19 of the internal affairs, which I will be referring to as the MUP, and
20 chief of the public security department of the MUP, the RJB.
21 The Trial Chamber issued its judgement on 23rd February 2011. It
22 convicted Mr. Djordjevic under five counts for the crimes of deportation,
23 other inhumane acts, consisting in forcible transfer, and persecutions on
24 racial grounds as crimes against humanity, as well as murder as a crime
25 against humanity, and also as a violation of the laws or customs of war.
1 The Trial Chamber found that Mr. Djordjevic participated in a joint
2 criminal enterprise with the purpose of modifying the ethnic balance in
3 Kosovo to ensure Serbian control over the province. This purpose was
4 achieved through the commission of these crimes. The Trial Chamber also
5 found that Mr. Djordjevic aided and abetted the same crimes.
6 The Trial Chamber sentenced Mr. Djordjevic to 27 years of
8 In his appeal, Mr. Djordjevic raises 19 grounds of appeal,
9 challenging the findings of the Trial Chamber, and the Prosecution raises
10 two grounds of appeal.
11 The Appeals Chamber heard oral submissions by the parties on
12 13th May of last year.
13 I will now proceed to summarise the Appeals Chamber's main
14 findings on Mr. Djordjevic's appeal before turning to the Prosecution
16 In his first ground of appeal and in grounds 3, 4, and 5,
17 Mr. Djordjevic raises a number of arguments in relation to the joint
18 criminal enterprise. In particular, he challenges the Trial Chamber's
19 findings concerning the existence of the joint criminal enterprise; the
20 timing and the members of the joint criminal enterprise; the plurality of
21 persons; and the nature of the common plan. The Appeals Chamber finds
22 that Mr. Djordjevic has failed to demonstrate that the Trial Chamber
23 erred in its conclusions on these issues.
24 The Appeals Chamber therefore dismisses Mr. Djordjevic's first,
25 third, fourth, and fifth grounds of appeal.
1 In ground 2, part of ground 6 and ground 8 of his appeal,
2 Mr. Djordjevic submits that there are cogent reasons for the Appeals
3 Chamber to depart from its jurisprudence on various aspects of the law on
4 joint criminal enterprise. Specifically, he argues that the Appeals
5 Chamber should depart from its previous decisions finding that joint
6 criminal enterprise, as a form of liability, exists in customary law and
7 that convictions for specific intent crimes can be entered on the basis
8 of liability under the third category of joint criminal enterprise.
9 The Appeals Chamber finds that Mr. Djordjevic has failed to
10 demonstrate the existence of cogent reasons for such departure from its
11 jurisprudence, and therefore dismisses Mr. Djordjevic's second ground of
12 appeal, the relevant part of the sixth ground of appeal, and the eighth
13 ground of appeal.
14 In the remainder of his sixth ground of appeal, Mr. Djordjevic
15 submits that the Trial Chamber failed to establish the required link
16 between the joint criminal enterprise members and the physical
17 perpetrators of the crimes. In its judgement, the Appeals Chamber also
18 rejects this argument, which it finds unfounded, and accordingly
19 dismisses ground 6 in its entirety.
20 Under his seventh ground of appeal, Mr. Djordjevic submits that
21 the Trial Chamber erred in concluding that the crimes of murder and
22 persecutions fell within the joint criminal enterprise. He argues that
23 the Trial Chamber failed to establish that each member of the joint
24 criminal enterprise shared the requisite mens rea for these crimes. The
25 Appeals Chamber finds that the Trial Chamber made all the necessary
1 findings and that Mr. Djordjevic has failed to show that no reasonable
2 trier of fact could have reached the same conclusion as the Trial
3 Chamber. Accordingly, ground 7 is dismissed.
4 Under his ninth ground of appeal, Mr. Djordjevic makes a number
5 of submissions, divided into eight subgrounds, concerning his
6 participation in the joint criminal enterprise. He argues that the Trial
7 Chamber committed several errors of law and fact, which resulted in a
8 mischaracterisation of his conduct and improperly linked him to the joint
9 criminal enterprise.
10 For the reasons set out in the judgement, the Appeals Chamber,
11 Judge Tuzmukhamedov dissenting in part, is not persuaded by
12 Mr. Djordjevic's arguments. Therefore, Judge Tuzmukhamedov dissenting in
13 part, the ninth ground of appeal is dismissed in its entirety.
14 Under his tenth ground of appeal, Mr. Djordjevic submits that the
15 Trial Chamber committed several errors of law and fact in assessing his
16 mens rea for the joint criminal enterprise liability. He advances
17 several -- numerous arguments to the effect that the Trial Chamber erred
18 in finding that he possessed the criminal intent for the joint criminal
20 One of his arguments is that the Trial Chamber erred in relying
21 on certain reports by Human Rights Watch, in inferring his knowledge of
22 the crimes. The Appeals Chamber agrees with this submission. However,
23 for reasons outlined in the judgement, the Appeals Chamber considers that
24 this error does not impact the Trial Chamber's conclusion on
25 Mr. Djordjevic's knowledge of the crimes and its overall conclusion that
1 he possessed the required intent for joint criminal enterprise liability.
2 The Appeals Chamber rejects all other arguments advanced by
3 Mr. Djordjevic in this ground of appeal, as he has failed to show that no
4 reasonable trier of fact would have come to the conclusion that he
5 possessed the required or requisite intent for the joint criminal
6 enterprise, based on the evidence. Mr. Djordjevic's tenth ground of
7 appeal is therefore dismissed.
8 Under his 12th ground of appeal, Mr. Djordjevic submits that the
9 Trial Chamber misapplied the definition of "civilian" and therefore erred
10 in convicting him for the crimes of deportation, other inhumane acts
11 consisting in forcible transfer and murder.
12 The Appeals Chamber, Judge Tuzmukhamedov dissenting in part, is
13 not persuaded by any of his arguments. As described in the judgement,
14 the Appeals Chamber considers that the Trial Chamber did not err in its
15 determination of the protected status of victims or in its assessment of
16 the proportionality of the attack. Accordingly, Judge Tuzmukhamedov
17 dissenting in part, ground 12 is dismissed.
18 Under his 13th ground of appeal, Mr. Djordjevic submits that the
19 Trial Chamber erred in finding that the crime of deportation was
20 committed with respect to Kosovo Albanians who were displaced from Kosovo
21 to Montenegro.
22 In its judgement, the Appeals Chamber finds that, consistent with
23 the Tribunal's jurisprudence, the Trial Chamber correctly observed that
24 the crime of deportation can be established by displacement across a
25 de facto border. However, it failed to articulate the basis in customary
1 international law upon which a de facto border could be established in
2 this instance. This, in the opinion, or in the conclusion of the Appeals
3 Chambers, constitutes an error of law. Consequently, the Appeals Chamber
4 has considered whether the finding that a de facto border existed between
5 Kosovo and Montenegro is supported in customary international law. It
6 has found no such support. Therefore, the Trial Chamber erred in
7 concluding that the crimes of deportation and persecutions through the
8 act of deportation were committed with respect to the displacement from
9 Kosovo to Montenegro. For these reasons, the Appeals Chamber overturns
10 the Trial Chamber's finding in this respect and grants the 13th ground of
12 Under his 14th ground of appeal, Mr. Djordjevic submits that the
13 Trial Chamber erred in convicting him for murder in relation to certain
14 crime sites where premeditation was not established. In its judgement,
15 the Appeals Chamber holds that the jurisprudence of the Tribunal has not
16 required premeditation as an element of the crime of murder. That's
17 under Article 3 and 5 of the Statute of the Tribunal. The Appeals
18 Chamber finds that Mr. Djordjevic has advanced no cogent reasons which
19 would justify the Appeals Chamber to depart from this jurisprudence.
20 Accordingly, his arguments are rejected and his 14th ground of appeal is
22 Under his 5th ground of appeal, in part, Mr. Djordjevic submits
23 that the Trial Chamber committed errors of law and fact in finding that
24 the crime of persecutions was established through the destruction of
25 certain mosques. He also submits that the Trial Chamber erred in the
1 application of the equal gravity test in relation to the underlying act
2 of destruction of religious property.
3 The Appeals Chamber, Judge Tuzmukhamedov dissenting in part,
4 finds that the Trial Chamber did not err in these respects and therefore
5 dismisses the 15th ground of appeal in part. The remainder of this
6 ground is addressed in the context of the 17th ground of appeal.
7 Under his 16th ground of appeal, Mr. Djordjevic submits that the
8 Trial Chamber erred in convicting him of the crimes of deportation, other
9 inhumane acts consisting in forcible transfer, murder, and persecutions
10 with respect to several incidents as they were not alleged in the
12 In its judgement, the Appeals Chamber finds the Trial Chamber
13 erred in finding Djordjevic responsible for the crime of deportation in
14 relation to two incidents; the crime of other inhumane acts consisting in
15 forcible transfer in relation to two incidents; and the crime of murder
16 in relation to the killing of 11 individuals at two locations; and the
17 crime of persecution in relation to all of these incidents.
18 The details will be set out later on during this hearing in the
19 latter part of this summary.
20 With respect to all of the other incidents, which have been
21 challenged by Appellant Djordjevic, the Appeals Chamber finds that he has
22 shown no error.
23 In the light of the forgoing, the Appeals Chamber grants the 16th
24 ground of appeal, in part.
25 Under his 17th ground of appeal and part of his 15th ground of
1 appeal, Mr. Djordjevic challenges the Trial Chamber's findings that the
2 crimes of deportation, other inhumane acts consisting in forcible
3 transfer, murder, and persecutions were established in certain locations.
4 The Appeals Chamber, Judge Guney and Judge Tuzmukhamedov
5 dissenting in part, finds that Mr. Djordjevic has failed to demonstrate
6 an error in this regard. Therefore, Judge Guney and Judge Tuzmukhamedov
7 dissenting in part, the Appeals Chamber dismisses ground 17 of Appellant
8 Djordjevic in its entirety and ground 15 in part.
9 Under his 18th ground of appeal, Mr. Djordjevic presents two
10 subgrounds. First Mr. Djordjevic submits that the Trial Chamber erred by
11 convicting him twice for the same crimes. Once for committing the crimes
12 through participation in a joint criminal enterprise; and again for
13 aiding and abetting these crimes. The Appeals Chamber is satisfied that
14 the Trial Chamber only convicted him once for the crimes but on the basis
15 of two modes of liability. The Appeals Chamber also finds that it was
16 within its discretion - that is, within the Trial Chamber's discretion -
17 to enter convictions on the basis of more than one mode of liability.
18 However, the Appeals Chamber finds that the Trial Chamber failed to
19 articulate why both modes of liability were necessary to reflect the
20 totality of Mr. Djordjevic's criminal conduct. This amounted to an error
21 of law. The Appeals Chamber considered that in this case, the criminal
22 conduct of Mr. Djordjevic is fully reflected in a conviction based solely
23 on his participation in the joint criminal enterprise. The Appeals
24 Chamber therefore grants this subground, in part, and reverses the Trial
25 Chamber's findings concerning Counts 1 to 5 with respect to aiding and
2 In the light of this finding, Mr. Djordjevic's 11th ground of
3 appeal, which raised the arguments in relation to aiding and abetting,
4 becomes moot.
5 His second subground asserts that the Trial Chamber erred in
6 entering convictions pursuant to Article 5 of the Statute for the crimes
7 of deportation and other inhumane acts, consisting in forcible transfer,
8 and murder in addition to a conviction for the crime of persecutions
9 through those same acts. In its judgement, the Appeals Chamber finds no
10 such error. This subground is therefore dismissed.
11 I will now set out the Appeals Chamber's findings on the
12 Prosecution's appeal.
13 In its first ground of appeal, the Prosecution submits that the
14 Trial Chamber erred in law and in fact by finding that the crime of
15 persecutions through sexual assault was not established.
16 The Prosecution argues that the Trial Chamber erred in failing to
17 find that underlying acts of sexual assault was established in relation
18 to a Kosovo Albanian girl in a convoy in Pristina municipality and two
19 young Kosovo Albanian women in Beleg. It further argues that the Trial
20 Chamber erred in failing to find that the crime of persecutions was
21 established through the sexual assault of five women; namely, the three
22 aforementioned women and Witnesses K14 and K20. Finally, the Prosecution
23 argues that the Trial Chamber erred in failing to find Mr. Djordjevic was
24 liable for persecutions through these sexual assaults under the third
25 category of joint criminal enterprise.
1 In its judgement, the Appeals Chamber finds that the Trial
2 Chamber erred in failing to find that the three women were sexually
3 assaulted. It further finds that the Trial Chamber committed an error of
4 law in its assessment of the discriminatory intent of the perpetrators of
5 the sexual assaults. For reasons set out in the judgement, the Appeals
6 Chamber, Judge Tuzmukhamedov dissenting, is satisfied that the sexual
7 assaults of a Kosovo Albanian girl in a convoy in Pristina municipality,
8 two young Kosovo Albanian women in Beleg, and Witnesses K14 and K20 were
9 carried out with discriminatory intent and amounted to persecutions.
10 Furthermore, the Appeals Chamber, Judge Tuzmukhamedov dissenting, finds
11 that it was foreseeable for -- to Mr. Djordjevic that persecutions
12 through sexual assaults might be committed and that he willingly took the
13 risk when he participated in the joint criminal enterprise. It therefore
14 finds Mr. Djordjevic responsible for the crimes of persecution under the
15 third category of joint criminal enterprise.
16 In the light of these findings, the Appeals Chamber,
17 Judge Tuzmukhamedov dissenting, grants the Prosecution's first ground of
18 appeal and, Judge Guney dissenting, enters a conviction under Count 5 for
19 persecutions through sexual assault as a crime against humanity pursuant
20 to the third categorise of joint criminal enterprise.
21 I will now turn to sentencing.
22 Mr. Djordjevic, in his 19th ground of appeal, and the
23 Prosecution, in its second ground of appeal, challenged the sentence of
24 27 years imprisonment imposed by the Trial Chamber.
25 The Appeals Chamber finds that it was within the discretion of
1 the Trial Chamber to consider Djordjevic's role and position as an
2 aggravating factor. However, the Trial Chamber committed a discernible
3 error by failing to assess whether Mr. Djordjevic abused his position of
4 authority. The Appeals Chamber therefore grants Mr. Djordjevic's 19th
5 ground of appeal, in part. However, it finds his other arguments
6 unpersuasive and dismisses them. The Appeals Chamber is also not
7 persuaded by the Prosecution arguments and therefore dismisses its second
8 ground of appeal.
9 In the light of the above, and in its overall assessment of the
10 circumstances of the case, the Appeals Chamber finds that a reduction in
11 Djordjevic's sentence is appropriate. In particular, the Appeals Chamber
12 considers that the convictions entered by the Trial Chamber which have
13 now been overturned on appeal, outweigh the new convictions entered by
14 the Appeals Chamber - not only in terms of number of victims but also by
15 way of Djordjevic's level of responsibility. By this, however, the
16 Appeals Chamber by no means intends to suggest that the crimes for which
17 Djordjevic has been convicted on appeal are not grave. Considering the
18 foregoing, and in the circumstances of this case, including
19 Mr. Djordjevic's age, the Appeals Chamber will be reducing his sentence.
20 Disposition. I will now read out the disposition of the appeals
22 Mr. Djordjevic, will you please rise.
23 For the foregoing reason, the Appeals Chamber,
24 Pursuant to Article 25 of the Statute and Rules 117 and 118 of
25 the Rules of Procedure and Evidence;
1 Noting the written submissions of the parties and their oral
2 arguments presented during the appeal hearing of the 13th May 2013;
3 Sitting in open session;
4 With respect to Djordjevic's appeal:
5 Grants Djordjevic's 13th ground of appeal, and reverses his
6 conviction for deportation (Count 1) and persecutions through deportation
7 (Count 5) with respect to the displacement of individuals to Montenegro
8 from Pec on 27 and 28 March, 1999, and from Kosovska Mitrovica on the 4th
9 of April, 1999;
10 Grants, in part, Djordjevic's 16th ground of appeal, and reverses
11 his convictions in so far as they relate to:
12 First, deportation (Count 1) and persecutions committed through
13 deportation (Count 5) at Kladernica, in Srbica/Skenderaj municipality,
14 between the 12th and 15th April 1999 and Suva Reka town between 7 and 21
15 May 1999;
16 Second: Other inhumane acts consisting in forcible transfer
17 (Count 2) and persecutions committed through forcible transfer (Count 5)
18 at Brocna and Tusilje in Srbica/Skenderaj municipality between 25th and
19 26th March and on 29th March 1999 respectively, and Cuska in Pec
20 municipality on 14 May 1999;
21 Third, murder, as a crime against humanity, and as a violation of
22 the laws or customs of war (Counts 3 and 4) and persecutions committed
23 through murder (Count 5) of two elderly men at Podujevo town, in Podujevo
24 municipality, on 28 March 1999 and of nine men at Mala Krusa in Orahovac
25 municipality on the 25th March 1999;
1 Grants, in part, Djordjevic's 18th ground of appeal, reverses his
2 convictions for Counts 1 to 5 on the basis of aiding and abetting, and
3 consequently declares moot his 11th ground of appeal;
4 Grants, in part, Djordjevic's 19th ground of appeal and finds
5 that the Trial Chamber erred in considering his position of authority as
6 an aggravating factor;
7 Dismisses the remainder of Djordjevic's appeal, Judge Guney
8 dissenting with respect to Djordjevic's 17th ground of appeal, in part,
9 and Judge Tuzmukhamedov dissenting with respect to Djordjevic's
10 subgrounds 9(E),(F), and (G), and, in part, 12th, 15th, and 17th grounds
11 of appeal;
12 Affirms all other convictions pursuant to Counts 1 to 5.
13 With respect to the Prosecution's appeal:
14 Grants, Judge Guney and Judge Tuzmukhamedov dissenting in part,
15 the Prosecution's first ground of appeal, and finds Djordjevic guilt,
16 pursuant to Articles 5 and 7(1) of the Statute, of the crimes of
17 persecutions through sexual assaults as a crime against humanity,
18 pursuant to the third category of joint criminal enterprise in relation
19 to the sexual assaults of Witness K20 and the two young women in Beleg,
20 Witness K14 and the Kosovo Albanian girl in a convoy, and revises
21 Djordjevic's conviction with respect to Count 5 accordingly;
22 Dismisses the Prosecution's second ground of appeal;
23 Sets aside the sentence of 27 years of imprisonment and imposes a
24 sentence of 18 years of imprisonment, subject to credit being given under
25 Rule 101(C) of the Rules of Procedure and Evidence for the period he has
1 already spent in detention;
2 Orders, in accordance Rules 103(C) and 107 of the Rules, that
3 Vlastimir Djordjevic is to remain in the custody of the Tribunal pending
4 the finalisation of arrangements for his transfer to the state where his
5 sentence will be served.
6 Judge Guney appends a partially dissenting and separate opinion.
7 Judge Tuzmukhamedov appends a dissenting opinion.
8 Mr. Djordjevic, you may be seated.
9 Registrar, you are free to distribute copies of the judgement to
10 the parties now.
11 Thank you.
12 Before concluding the hearing, I would like to briefly thank
13 everyone in this courtroom and outside this courtroom who have helped us
14 throughout these proceedings over the past months and two years without
15 whom and without whose help we wouldn't have come to this stage today.
16 In particular, I would like to thank my learned colleagues sitting with
17 me here today for all their help, counsel, advice and co-operation.
18 I will now conclude this hearing.
19 The Appeals Chamber stands adjourned.
20 --- Whereupon the hearing adjourned at 4.11 p.m.